Title X of the Public Health Services Act provides grants for
family planning services. Section 1008 of the Act specifies
that none of the federal funds appropriated under Title X "shall be
used in programs where abortion is a method of family
planning." In 1988, the Secretary of Health and Human
Services issued new regulations that, among others things,
prohibited Title X family planning projects from engaging in
counseling concerning, referrals for and activities advocating
abortion as a means of family planning, and requiring such projects
to maintain an objective integrity and independence from the
prohibited abortion activities by the use of separate facilities,
personnel and accounting records. Before the regulations went
into effect, plaintiffs, Title X grantees and physicians who
supervise Title X funds, filed several lawsuits in federal district
court against defendant, the Secretary of HHS, alleging that the
regulations were not authorized by Title X and were
unconstitutional on their face, and seeking declaratory and
injunctive relief against their enforcement. The cases were
consolidated for disposition. The district court upheld the
regulations and the court of appeals affirmed. The Supreme
Court thereafter granted the plaintiffs' petition for review.

The Regulations Under Review

Title X, which was enacted in 1970, provides federal funding for
family-planning services. The Act authorizes the Secretary of
HHS to "make grants to and enter into contracts with public or
nonpublic private entities to assist in the establishment and
operation of voluntary family planning projects which shall offer a
broad range of acceptable and effective family planning methods and
services." 42 U.S.C. § 300(a). Grants and contracts
under Title X must "be made in accordance with such regulations as
the Secretary may promulgate." Id. §
300a-4(a). Section 1008 of the Act provides that "[n]one of
the funds appropriated under this subchapter shall be used in
programs where abortion is a method of family planning."
Id. § 300a-6. That restriction was intended to
ensure that Title X funds would "be used only to support
preventative family planning services, population research,
infertility services, and other related medical, informational, and
educational activities." H.R. Conf. Rep. No. 91-1667, p. 8
(1970).

The regulations promulgated by the Secretary of Health and Human
Services were designed to provide " 'clear and operational
guidance' to grantees about how to preserve the distinction between
Title X programs and abortion as a means of family planning."
53 Fed. Reg. 2923-24 (1988). The regulations clarified,
through the definition of the term "family planning" that Congress
intended Title X funds "to be used only to support preventive
family planning services." H.R. Conf. Rep. No. 91-1667, p. 8
(emphasis added). Accordingly, Title X services are limited
to "preconceptional counseling, education, and general reproductive
health care," and expressly excluded "pregnancy care (including
obstetric or prenatal care)." 42 CFR § 59.2 (1989). The
regulations were intended to "focus the emphasis of the Title X
program on its traditional mission: The provision of
preventative family planning services specifically designed to
enable individuals to determine the number and spacing of their
children, while clarifying that pregnant women must be referred to
appropriate prenatal care services." 53 Fed. Reg. 2925
(1988).

The regulations placed three conditions on the grant of federal
funds for Title X projects:

First, the regulations specified that a "Title X project may not
provide counseling concerning the use of abortion as a method of
family planning or provide referral for abortion as a method of
family planning." 42 CFR § 59.8(a)(1) (1989). Title X
is limited to preconceptional services. Accordingly, the
program does not furnish services related to childbirth. Only
in the context of a referral out of the Title X program is a
pregnant woman given transitional information. Id. §
59.8(a)(2). Title X projects must refer every pregnant
client "for appropriate prenatal and/or social services by
furnishing a list of available providers that promote the welfare
of mother and unborn child." Id. Under the
regulations issued by the Secretary of HHS, the list could not be
used indirectly to encourage or promote abortion, "such as by
weighing the list of referrals in favor of health care providers
which perform abortions, by including on the list of referral
providers health care providers whose principal business is the
provision of abortions, by excluding available providers who do not
provide abortions, or by 'steering' clients to providers who offer
abortion as a method of family planning." Id §
59.8(a)(3). The Title X project was expressly prohibited from
referring a pregnant woman to an abortion provider, even upon her
specific request. One permitted response to such a request
was to inform the woman that "the project does not consider
abortion to be an appropriate method of family planning and
therefore does not counsel or refer for abortion." Id. §
59.8(b)(5).

Second, the regulations broadly prohibited a Title X project
from engaging in activities that "encourage, promote or advocate
abortion as a method of family planning." 42 CFR §
59.10(a). Forbidden activities included lobbying for
legislation that would increase the availability of abortion as a
method of family planning, developing or disseminating materials
advocating abortion as a method family planning, providing speakers
to promote abortion as a method of family planning, using legal
action to make abortion available in any way as a method of family
planning and paying dues to any group that advocates abortion as a
method of family planning as a substantial part of its activities.
Id.

Third, the regulations required that Title X projects be
organized so that they are "physically and financially separate"
from prohibited abortion activities. 42 CFR § 59.9. To
be deemed physically and financially separate, "a Title X project
must have an objective integrity and independence from prohibited
activities. Mere bookkeeping separation of Title X funds from
other monies is not sufficient." Id. The regulations
provided a list of nonexclusive factors for the Secretary to
consider in conducting a case-by-case determination of objective
integrity and independence, such as the existence of separate
accounting records and separate personnel, and the degree of
physical separation of the project from facilities for prohibited
activities. Id.

The Court's Holding

By a vote of five-to-four, the Supreme Court affirmed the
judgment of the court of appeals upholding the challenged
regulations.

The Court's Reasoning

Chief Justice Rehnquist wrote the majority opinion for the
Court. In Part II of his opinion, Chief Justice Rehnquist
rejected the plaintiffs' argument that the Secretary's regulations
were not authorized by Title X. Rust, 500 U.S. at
183-91. Chief Justice Rehnquist noted that the plain language
of § 1008-that "[n]one of the funds appropriated under this
subchapter shall be used in programs where abortion is a means of
family planning"-was ambiguous and "does not speak directly to the
issues of counseling, referral, advocacy, or program
identity." Id. at 184. Under these
circumstances, where the language of a statute is silent or
ambiguous, the question for the court is whether the agency's
answer is based upon a permissible construction of the
statute. Id. Based upon the broad directives
provided by Congress in Title X in general and by § 1008 in
particular, the Court was unable to conclude that the Secretary's
construction of the prohibition in § 1008 to require a ban on
counseling, referral and advocacy within the Title X project was
impermissible. Id. The Court also determined
that the "program integrity" requirements embodied in the
Secretary's regulations (§ 59.9), mandating separate facilities,
personnel and records were not inconsistent with the plain language
of Title X. Id. at 187. The program integrity
requirements "are based on a permissible construction of the
statute and are not inconsistent with congressional intent."
Id. at 188.

The Court next turned to plaintiffs' constitutional
arguments. Plaintiffs argued that the regulations violated
the First Amendment because they impermissibly discriminated on the
basis of viewpoint-prohibiting discussion about abortion but
mandating information promoting childbirth. Rust,
500 U.S. at 192. The Court rejected this argument.
Chief Justice Rehnquist pointed out that the statute prohibiting
the use of Title X funds to pay for abortion (§ 1008) was
constitutional. Id. at 192-93. The challenged
regulations simply implemented the statute "by prohibiting
counseling, referral, and the provision of information regarding
abortion as a method of family planning," and were "designed to
ensure that the limits of the federal program are observed."
Id. at 193. Plaintiffs' argument could be distilled
to the position that "if the Government chooses to subsidize one
protected right, it must subsidize analogous counterpart
rights." Id. at 194. The Court, however, has
repeatedly rejected that proposition. Id. (citing
cases). Thus, "when the Government appropriates public
funds to establish a program it is entitled to define the limits of
that program." Id. at 194.

The Court also rejected plaintiffs' alternative First Amendment
claim that the challenged regulations "condition the receipt of a
benefit, in these cases Title X funding, on the relinquishment of a
constitutional right, the right to engage in abortion advocacy and
counseling." Rust, 500 U.S. at 196. This claim was
unavailing because "the Government is not denying a benefit to
anyone, but is instead simply insisting that public funds be spend
for the purposes for which they were authorized."
Id. Moreover, the regulations "do not force the
Title X grantee to give up abortion-related speech; they merely
require that the grantee keep such activities separate and distinct
from Title X activities." Id. The regulations were
aimed at Title X projects, not Title X grantees, who remain free
"to perform abortions, provide abortion-related services, and
engage in abortion advocacy" so long as those activities were
conducted "through programs that are separate and independent from
the project that receives Title X funds." Id. "Congress
has merely refused to fund such activities out of the public fisc,
and the Secretary has simply required a certain degree of
separation from the Title X project in order to ensure the
integrity of the federally funded program." Id. at
198. Nor do the challenged regulations "abridge the free
speech rights of the grantee's staff":

Individuals who
are voluntarily employed for a Title X project must perform their
duties in accordance with the regulation's restrictions on abortion
counseling and referral. The employees remain free, however,
to pursue abortion-related activities when they are not acting
under the auspices of the Title X project. The regulations,
which govern solely the scope of the Title X project's activities,
do not in any way restrict the activities of those persons acting
as private individuals. The employees' freedom of expression
is limited during the time that they actually work for the project;
bu the limitation is a consequence of their decision to accept
employment in a project, the scope of which is permissibly
restricted by the funding authority.

Id. at 198-99.

Finally, the Court turned to plaintiffs' argument that the
regulations violate a woman's Fifth Amendment right to choose
whether to terminate her pregnancy. Chief Justice Rehnquist
quickly disposed of this argument on the basis of the Court's
decisions upholding statutes restricting the use of public funds or
public facilities for the performance of abortions.
Rust, 500 U.S. at 201-03 (citing Maher v. Roe,
432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 279 (1980),
and Webster v. Reproductive Health Services, 492 U.S. 490
(1989) (for a summary of the constitutional issues decided in
Maher, Harris and Webster, please see
the summaries for those cases)). "The Government has no
constitutional duty to subsidize an activity merely because the
activity is constitutionally protected and may validly choose to
fund childbirth over abortion and implement that judgment by the
allocation of public funds for medical services relating to
childbirth but not to those relating to abortion."
Id. at 201 (citation and internal quotation marks
omitted).

Concluding his opinion for the Court, Chief Justice Rehnquist
stated that the Secretary's regulations "are a permissible
construction of Title X and do not violate either the First or
Fifth Amendments to the Constitution." Rust, 500
U.S. at 203.

Justice Blackmun, in an opinion in which Justice Marshall
concurred in full and in which Justices Stevens and O'Connor
concurred in part, dissented. Justice Blackmun first argued
that the Secretary's regulations raised serious constitutional
questions which the Court should have avoided by holding that they
were not authorized by Title X. Rust, 500 U.S. at
204-07 (Blackmun, J., dissenting). He next argued that the
regulations, if authorized by Title X, constituted "viewpoint-based
suppression of speech" that was imposed as "a condition upon the
acceptance of public funds," id. at 207, in violation of
the First Amendment rights of the Title X project grantees,
physicians and staff. Id. at 207-15. Finally,
Justice Blackmun argued that the regulations, if authorized by
Title X, infringed upon the Fifth Amendment rights of women seeking
medical services from Title X grantees. Id. at
215-19.

Justice Stevens wrote a short dissenting opinion in which he
took issue with the Court's interpretation of Title X's prohibition
(§ 1008) on the use of funds for abortion. Rust, 500
U.S. at 220-23 (Stevens, J., dissenting). In Justice Stevens'
view, the prohibition was aimed solely at conduct, not
speech. Accordingly, the Secretary's regulations went far
beyond what § 1008 prohibited and were not authorized by
statute. Id. at 221-23. Justice Stevens also
joined those parts of Justice Blackmun's opinion in which he
discussed the constitutional issues.

Justice O'Connor also wrote a short dissenting opinion.
Without joining that part of Justice Blackmun's dissent in which he
discussed the constitutional issues, Justice O'Connor would have
reversed the court of appeals solely on the basis that the
Secretary's regulations were not authorized by Title X.
Rust, 500 U.S. at 223-25 (O'Connor, J., dissenting).

Note

Following his inauguration in January 1993, President Clinton
rescinded the Title X regulations that had been upheld in Rust
v. Sullivan. The regulations have never been
reinstated.